1. EXCLUSIVITY. Merchant shall not submit debit transactions to any other entity or legal person other than Poseidon Solutions Inc. (Poseidon) and its designated processor (“Processor”).
2. MERCHANT OBLIGATIONS. Merchant shall: (a) place or equip the terminal so as to maximize the privacy of information entered by the cardholder; (b) neither ask cardholder for his/her Personal Identification Number (PIN) nor store or capture such information; (c) maintain accurate logs of employee shifts and provide same within 24 hours of a request; (d) connect its terminal only to a POSEIDON Processor; (e) not change locations or relocate the terminal without POSEIDON’s prior written consent; (f) remit a copy of the transaction record to cardholder; (g) allow POSEIDON or its Processor, upon request, to perform audits of security and technical standards relating to terminals and provide financial statements pertaining to transactions; (h) prominently display the Interac Direct Payment symbol at its location; (i) refrain from altering or tampering with any terminal; (j) adhere to all applicable Interac rules, regulations, policies and directives, as may be modified from time to time (a copy of the Interac rules is available upon request); (k) securely store all cardholder information/records and destroy same after one year from the transaction date; (l) settle all cardholder disputes directly with cardholder; (m) not charge a surcharge without notification to cardholder; (n) cut in half any card left behind by a cardholder and immediately forward same to Processor; (o) at all times comply with minimum transaction values set by POSEIDON or its Processor; and (p) provide cardholder the option of receiving an abbreviated transaction record (i.e., a sales slip with notation by staff at retail location that payment was made using an Interac debit payment card and showing cardholder’s primary account number) in the event Merchant’s terminal-related printer is out of service. Merchant may offer discounts to cardholders for different methods of payment (e.g., debit or credit card purchases), provided any such discounts are clearly marked at the point-of-sale.
4. PAYMENTS TO MERCHANT; OTHER FEES. The net amount owing shall be calculated monthly and be settled in full on or around the 25th day of the following month. In the event fees owing exceed the amount of surcharge collected, POSEIDON shall have the right to debit Merchant’s settlement Account for any such uncollected fees. All amounts not paid when due are subject to a late payment charge of 1.5% per month (20.1% per annum). A returned payment administration fee of thirty five (35) dollars will be charged for any payments not honoured. POSEIDON may also, at its sole option, (i) withhold settlements until such time as all outstanding amounts have been duly acquitted; and/or (ii) suspend or terminate all services hereunder. Where applicable, Merchant shall be subject to the following fees: up to three hundred and twenty-five (325) dollars for each account or host-level change requested by Merchant; a minimum Interac transaction fee of twenty (20) dollars per month; a communications fee of three (0.03) cents per attempted or completed credit or debit transaction; a batch close fee of five (0.05) cents per batch; an annual PCI compliance fee of ninety-six (96) dollars; a wireless fee of $15/month for 1 MB of data, and $10 for each additional MB in excess of 1 MB. If Merchant uses the wireless services for purposes not strictly related to processing transactions or for any unrelated purpose, Poseidon may terminate the merchant agreement and, at its option, may charge the Merchant a premium of 20% over and above any costs incurred. An annual license fee may apply.
5. PRE-AUTHORIZED DEBITS. Merchant expressly authorizes POSEIDON to initiate, through electronic funds transfer, monthly debit entries and adjustments to the designated account as indicated by Merchant’s specimen check hereto attached or any replacement checking account (“Account”) for any amounts, fees or charges due under this Agreement, which amounts may be variable, and this shall constitute POSEIDON’s good and sufficient authority for so doing. Merchant waives its right to receive pre-notification of the debit amount before such debit is processed. This authorization will remain in full force and effect until full and final payment of all obligations of Merchant hereunder. If (i) Merchant’s Account is closed, transferred, invalid or out of funds; (ii) Merchant withdraws its authorization for POSEIDON to make withdrawals from the Account(s); or (iii) POSEIDON cannot access such Account(s) for any reason, then POSEIDON may terminate this Agreement and Merchant shall immediately pay all applicable fees and damages. If an account is opened at another branch or bank, this authorization shall have the same force and effect as if it had originally been directed to that branch or bank. Any delivery of this authorization to the bank or branch shall constitute delivery by Merchant. Merchant must give POSEIDON no less than 30 days’ prior written notice of any changes to the Account(s) and/or cancellation of this authorization. If withdrawals from Merchant’s Account(s) do not comply with this Agreement, Merchant has certain recourse rights (e.g., Merchant has the right to seek reimbursement for any debit that is unauthorized or inconsistent with this Agreement). Merchant may contact its financial institution or visit for further information and cancellation resources. POSEIDON will not be liable for any delays in receipt of funds or errors in debit entries.
6. AMENDMENTS. Except as otherwise provided below, POSEIDON reserves the right to modify or amend this agreement upon giving Merchant ten (10) days’ prior notice including modifying or amending fees not related to debit transactions. Merchant acknowledges that its continued acceptance of debit cards after said 10-day period shall conclusively indicate acceptance of such change or amendment. Poseidon may, upon 90 days prior notice, increase or introduce new debit transaction fees; all such fee adjustments shall become effective on the 90th day unless Merchant sends Poseidon, prior to the effective date, notice of its intent to opt out of such fee adjustment. Poseidon may similarly make structural fee adjustments upon 180 day notice. The term of this Agreement shall be automatically extended an additional five years in the event of a price decrease; effective as of the date such price change is implemented.
7. TERM. This agreement takes effect on the date indicated in the Merchant Application, remains in full force and effect for a term of five (5) years, and automatically renews for additional five-year periods unless either party gives written notice of non-renewal at least six months prior to the expiration of the then-current term. POSEIDON may, with or without cause, terminate this agreement upon notice; except in the event of a threatened or material breach by Merchant, in which case POSEIDON may terminate without notice. All Merchant obligations for any transactions completed on or prior to the date of termination shall survive termination. Merchant specifically waives application of Articles 2125 and 2129 of the Civil Code of Quebec. Termination of this agreement and any attendant liability is to be determined in accordance with the intention expressed by the parties.
8. LIQUIDATED DAMAGES. Merchant acknowledges and agrees that in addition to all other remedies available to POSEIDON under this agreement or at law, if Merchant terminates before expiration of the then-current term, or POSEIDON terminates for cause, then Merchant shall pay to POSEIDON damages (“Damages”) representing the greater of: (a) five hundred (500) dollars; or (b) the amount determined by computing the number of months remaining in the Agreement, and multiplying that number by the average monthly fees paid by Merchant. Merchant agrees that such Damages will also be due if Merchant ceases processing debit card transactions for 30 consecutive days. Damages may be offset or debited from Merchant’s Account. Damages shall not apply if Merchant terminates based on a Section 6 fee adjustment to debit transactions, provided Merchant's notice of such termination is received prior to the effective date of such adjustment (i.e., before expiration of the 90-day period). Damages shall apply in all other cases.
9. LIMITATION of LIABILITY. POSEIDON shall not be liable for indirect, consequential, incidental and punitive damages, including any lost profits, lost interest or economic loss, relating to or arising from this Agreement. To the extent POSEIDON is liable for any damages the liability for which is not excluded above, such liability shall not exceed the average monthly fees paid by Merchant. Merchant agrees that in no event shall POSEIDON be liable hereunder for any claim, loss, billing error, or expense caused by POSEIDON’s performance or failure to perform which was not reported by Merchant in writing within 30 days of the invoice date.
10. NOTICES. All notices by Merchant must be given in writing and sent by registered mail to the address set forth in the Merchant Application. Notices by POSEIDON may be given by mail or electronically, included on POSEIDON’s monthly statements, and/or posted on the Website. It shall be Merchant’s responsibility to visit the Website weekly. Notice shall be deemed effective as follows: if by registered mail, upon receipt; if sent electronically, the day after transmission to the email address on file; if sent by mail, 3 days after sent (or if the addressee rejects or refuses to accept the notice, or if the notice cannot be delivered because of a change of address, then upon rejection, refusal or inability to deliver); or if by Website, after the notice has been left posted for ten consecutive days.
11. FORCE MAJEURE. POSEIDON shall not be liable for any failure to perform, if such failure is caused by circumstances beyond its reasonable control including, but not limited to, acts of God, acts of war, labor dispute, natural disaster, telecommunications or utility failure, government action or non-performance by its processors; except that nothing in this Section 11 shall excuse Merchant’s liabilities or obligations to pay for fees and unfulfilled services.
12. ARBITRATION. Any claim, dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this Agreement or the relationships which result from this Agreement (including with third parties who are not parties hereto) shall be referred to and determined by private, confidential and binding arbitration in Quebec before a single arbitrator chosen by the parties and at their joint cost. By so agreeing, Merchant waives any right it may have to launch or participate in any class action against POSEIDON, and where applicable, hereby agrees to opt out of any class action against POSEIDON otherwise commenced. Where applicable laws do not permit the use of compulsory arbitration or the waiver of class-action rights, the provisions of this section shall be subject to severance in accordance with Section 15 below.
13. GOVERNING LAW; LANGUAGE. This agreement shall be governed by and construed in accordance the laws of the Province of Quebec. The parties have agreed to have this Agreement, and all related documents, drafted solely in English. Les parties ont exigés que le présent contrat, ainsi que tout document s’y rapportant, soit rédigés en anglais seulement.
14. TAXES. Merchant agrees to pay any taxes imposed on services, equipment, supplies and any other goods provided hereunder.
15. GENERAL. The Interac rules, requirements, regulations and by-laws, Operating Guide, and all schedules, forms and attachments to this agreement constitute the entire understanding between Merchant and POSEIDON relating to the matters herein. Merchant may not assign or transfer its rights or obligations under this Agreement without POSEIDON’s prior written consent. This agreement shall prevail over the terms of any agreement governing Merchant’s designated bank account(s). If any part of this agreement is void or unenforceable, this Agreement shall be construed as if such part had never been part of the agreement. No term or condition of this Agreement may be waived unless both parties sign a written waiver.